Damage by fire and related offences
[63-000] Summary of relevant considerations
[63-005] Introduction
Part 4 Div 2 Crimes Act 1900 contains offences of:
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intentionally or recklessly destroying or damaging another’s property (s 195);
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destroying or damaging property with intent to injure a person (s 196); and
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destroying or damaging property dishonestly (s 197).
Higher maximum penalties apply where the property destruction or damage is caused by means of fire or explosives. Section 198 contains an offence of damaging or destroying property with the intention to endanger life.
The common law offence of arson was abolished by the Crimes (Criminal Destruction and Damage) Amendment Act 1987. However, the common law statements about arson may assist in applying the purposes of punishment and also in assessing the objective seriousness of offences under ss 195–198 where the property damage or destruction is by means of fire.
[63-010] Destroying or damaging by fire: ss 195–198
In Porter v R [2008] NSWCCA 145, Johnson J said:
[Arson] is an extremely serious and dangerous crime: R v James (1981) 27 SASR 348 at 351; R v Davies at 358 [44] … Courts have observed that arson is very easy to commit, usually with destructive (if not tragic) consequences: R v Catts (1996) 85 A Crim R 171 at 176; Newton v State of Western Australia at [12]. It has been said that arson is often a difficult crime to detect: R v Davies at 370 at [97]. Consideration of factors such as these has led courts to emphasise the importance of general deterrence in arson cases: [81].
Destroying or damaging by fire encompasses a vast array of criminal behaviour: R v Pitt [2001] NSWCCA 156 at [29]. Factors relevant to assessing the objective seriousness of a given offence include the:
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extent of the damage caused: R v Elzakhem [2008] NSWCCA 31 at [45]; Porter v R at [56]. For example, an offence may be considered serious where damage was done to a limited public resource such as public housing: R v Pitt at [27], or where it caused “substantial loss and personal stress” to small business owners: Porter v R at [83].
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potential risk of injury to other people: Porter v R at [80]; R v Dinos [1999] NSWCCA 208 at [8]–[10].
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possible spread of the fire: R v Baker [2000] NSWCCA 85 at [16]; Porter v R at [80].
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offender’s knowledge of the financial effects of their conduct. For example, where the property is uninsured: R v Priest [2000] NSWCCA 27 at [14].
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offender’s motive: Porter v R at [81]. However, lack of motive does not mitigate the seriousness of the crime: at [84].
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degree of planning and premeditation: R v Karibian [2007] NSWCCA 334 at [28]; R v VAA [2006] NSWCCA 44 at [45].
[63-011] Destroy or damage property (s 195) and the De Simoni principle
Section 195(1)(b) provides that a person who intentionally or recklessly destroys or damages property belonging to another (or that person and another), by fire or explosives, is liable to 10 years imprisonment.
In Issa v R [2017] NSWCCA 188, the Court found there was no breach of the De Simoni principle where the sentencing judge took into account the aggravating factor of lack of regard for public safety under s 21A(2)(i) Crimes (Sentencing Procedure) Act 1999 where the offender realised firebombing homes would cause a risk of physical danger to the occupants: [81]; see [1-500] De Simoni principle. The judge’s finding regarding the offender’s advertence to the possibility of danger to occupants did not trespass into the more serious offences of ss 196 and 198 as the mental state of recklessness is not sufficient for those offences; the Crown is required to prove “intent to injure” (s 196) or “intent to endanger life” (s 198): [68]–[72], [81].
[63-012] Dishonestly destroy or damage property (s 197) and the De Simoni principle
Section 197(1)(b) provides that a person who dishonestly, with a view to making a gain for that person or another, destroys or damages property by means of fire or explosives, is liable to imprisonment for 14 years.
In Ruge and Cormack v R [2015] NSWCCA 153, the sentencing judge breached the De Simoni principle and erroneously took into account the aggravating factor that the offender was aware his co-offender wanted to commit an “insurance job”: [40]–[41]; see [1-500] De Simoni principle. In that case, although the co-offender was sentenced for an offence under s 197(1)(b), the offender was sentenced for an offence of damage or destroy property by fire in company under s 195(1A)(b), which carries a lesser maximum penalty and no element concerning gain. By taking into account a circumstance of aggravation with which the offender was not charged, the judge breached the De Simoni principle: [40]–[41].
[63-015] Intention to endanger life (s 198) and the De Simoni principle
Section 198 provides that a person who destroys or damages property, intending to endanger life, is liable to imprisonment for 25 years. As this offence requires an intention to endanger life, it is a breach of the De Simoni principle to take into account an intention to kill: Cassidy v R [2012] NSWCCA 68 at [6], [22]; see [1-500] De Simoni principle. In Cassidy v R, the offender was effectively sentenced for offences in Pt 3 Div 3 Crimes Act (headed “Attempts to murder”). Those offences, despite having the same maximum penalty as s 198, attract standard non-parole periods and require an intention to kill. They are therefore “more serious” within the meaning of that term in The Queen v De Simoni: [7], [26].
[63-020] Bushfires: s 203E
The offence under s 203E Crimes Act 1900 of intentionally causing a fire, reckless as to its spread to vegetation, has a maximum penalty of 14 years imprisonment, with a standard non-parole period of 5 years.
The serious nature of the offence is reflected in the maximum penalty: R v Mills [2005] NSWCCA 175 at [53]. Factors relevant to objective seriousness include the extent of damage caused, the offender’s awareness of potential harm which can be caused by bushfires (such as by virtue of firefighting training) and the offender’s ongoing criminality (such as by lighting multiple fires across multiple days): R v Mills at [55]. The fact that an offence is committed without regard for public safety should not be given separate consideration as an aggravating factor under s 21A(2)(i) Crimes (Sentencing Procedure) Act 1999 as this appears to be an inevitable element of the offence: R v Mills at [56].